Zografakis, Eleftherios v Telstra Corp Ltd

[1997] FCA 1054

FEDERAL COURT OF AUSTRALIA

COSTS - Appeal from the Administrative Appeals Tribunal - agreement on orders to be made during second day of the hearing of the appeal - whether parties should bear their own costs of the appeal.

ELEFTHERIOS ZOGRAFAKIS V TELSTRA CORPORATION LTD
NG 805 of 1996

SACKVILLE J
SYDNEY
10 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 805 of 1996

BETWEEN:	ELEFTHERIOS ZOGRAFAKIS APPLICANT
AND:	TELSTRA CORPORATION LTD RESPONDENT
JUDGE:		SACKVILLE J
DATE OF ORDER:		10 OCTOBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. Each party bear his or its own costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG805 of 1996

BETWEEN:	ELEFTHERIOS ZOGRAFAKIS APPLICANT
AND:	TELSTRA CORPORATION LTD RESPONDENT

JUDGE:	SACKVILLE J
DATE:	10 OCTOBER, 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

On the second day of the hearing of this appeal, on a question of law, against a decision of the Administrative Appeals Tribunal (“AAT”) made on 4 September 1996, the parties reached agreement on the orders that should be made.  I made the following orders by consent:

“1.The directions of the Administrative Appeals Tribunal of 4 September 1996 be set aside.

2.The matter be remitted to the Administrative Appeals Tribunal for further determination in accordance with law and in accordance with any agreement that the parties may reach.”

At the request of the applicant, the parties were given an opportunity to make written submissions on costs.  The parties have now filed those written submission.  The applicant submits that the respondent (“Telstra”) should pay the costs of the appeal.  Telstra submits that each party should bear his or its own costs.

The applicant relies on the fact that the matter has been remitted to the AAT to be dealt with according to law.  However, I think it fair to say that the applicant shifted his ground during the hearing of  the appeal.  It was only on the second day, after some discussion between the parties and the Court, that the true ground on which the applicant relied in the appeal became clear.  Shortly after that the matter was resolved between the parties.

I also think it fair to say that it was only on the second day of the hearing that it became clear that the applicant accepted that he was estopped from maintaining a claim based on work-related lumbar spondylitis.  Moreover, the first day of the hearing was largely taken up with issues upon which (as I indicated at the time) the applicant faced formidable difficulties.  Had the true issue in the appeal been identified earlier, the case could have been resolved within a day and, indeed, may never have required a hearing.

In the circumstances, I think the appropriate course is that each party should pay his or its costs of the proceedings.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:  10 October, 1997

Counsel for the Applicant:	Mr J Berwick
Solicitor for the Applicant:	Crichton-Browne Crossley
Counsel for the Respondent:	Mr J R Wallace
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1, 29 August 1997
Date of Judgment:	10 October, 1997